R v Kasupene DC Waitakere CRI-2010-004-4437 [2011] NZDC 1974 (25 November 2011)

Last Updated: 11 January 2018

IN THE DISTRICT COURT AT WAITAKERE

CRI-2010-004-004437
_{THREE STRIKE WARNING}

THE QUEEN

v

DYLAN MURPHY KASUPENE ANARU MOANA

Hearing: 25 November 2011

Appearances: B Northwood for the Crown

J Anderson for the Prisoner Kasupene

Goodwin for the Prisoner Moana

Judgment: 25 November 2011

_{NOTES OF JUDGE D M WILSON, QC ON SENTENCING}

[1] Dylan Kasupene and Anaru Moana, you appear for sentence on a number of matters, but principally because of an aggravated robbery that you carried out together on 2 September last year in West Auckland.

[2] You, in fact, planned this robbery. It was to rob an Armourguard van when it called at the ASB bank at Westgate. The two of your ran up to the Armourguard employees as they left the bank carrying cash. You, Mr Moana, presented an imitation firearm at the men, which had been manufactured by your co-offender. They were very frightened.

[3] The photograph numbers 1 and 2, which have been produced at the disputed facts hearing, shows the firearm being presented at the guards. They tried to escape

R V KASUPENE & ANOR DC WAIT CRI-2010-004-004437 25 November 2011

back into the bank, but the doors did not close, so both of you followed them into the bank. One of them dropped the canister containing the cash and you, Mr Kasupene, picked it up. Both of you decamped in a Honda car that you, Mr Kasupene, had converted. It was driven away by an accomplice to Massey. You took the money from the car, and then one of you set it on fire in an attempt to destroy the evidence.

[4] There was a disputed facts hearing on 29 August 2011 in which Judge Aitken held that it was an imitation firearm that was used. The witnesses who were there described seeing a sawn-off shotgun, and the other one described it as a shotgun-type gun, which he saw you, Mr Moana, apparently cocking. The CCTV shows you to be brandishing the weapon, and a live cartridge was found near where you had been standing.

[5] So there is a degree of preparation here. There is the deliberate choice to take a firearm to the bank in order to secure the robbery that you had planned. I accept that that gun was not loaded and could not discharge. That is the finding that Judge Aitken made at the disputed facts hearing, and I sentence you on that basis. So it is not one of those more dangerous cases where an actual loaded firearm was presented, but it is bad enough. The people who were there did not know that. They reacted totally consistently with believing that the firearm was real and that their lives were at risk.

[6] Both of you entered pleas of guilty at first call and I give you both credit for that, because right from the start those victims would know that they were not going to have to give evidence at trial, and that is a recognised and important aspect of someone admitting responsibility right from the start. So you are going to get significant credit for that step.

[7] In your case, Mr Kasupene, you also have entered pleas, not quite so quickly but still promptly, on other charges. I will just deal with those. On 8 October 2011 you converted a Subaru Legacy, worth five and a half thousand dollars. On

21 October, in Auckland City, you converted a different Subaru Legacy, worth

$10,000, and after you had converted that car you ran a police check-point and sped off, crashing it into a lamppost in Henderson, and left on foot. On 6 November, that

is to say all within a month, these three, you converted a BMW worth $10,000. You happened to be at the service station when the owner went in to buy something and left the keys in the car, and you drove off. You failed to stop for a police pursuit, and when the pursuit was abandoned, you parked the car, but later returned to it and drove off, and it has never been recovered.

[8] In addition to that, on 12 February 2011 you failed to report for accumulated community work, and you have made a derisive attempt at that. There is 180 hours that you were sentenced to, the last 40 were accumulative for previous non-compliance, and there are 176.75 hours outstanding. So your compliance with that sentence has been derisive and perfunctory.

[9] There is an application to cancel a sentence of community work on the basis that you are in custody and non-compliant, and I make an order cancelling that sentence of community work. I am partially doing that because, obviously, on the charges, the other charges that you face, you are going to have to go to jail.

[10] I also have a fines report in your case. The amount of the fines is $4139.16, and I am remitting those fines, having regard to the fact that you have no means to pay them. Those fines are remitted, when you come out they will not be there.

[11] In relation to those charges of car conversion, they involve not only the removal of the car at the great inconvenience to the owners, but also associated with them was a willingness by you to drive at speed and to lose control of the vehicles. In those circumstances, in my view, it is appropriate to include in your sentencing a disqualification from driving. I am satisfied that that is appropriate in this case, and on each of those charges of car conversion you are disqualified from holding or obtaining a driver’s licence for nine months concurrently.

[12] In your case, on the charge of robbery, I must approach you as the person who primarily was the organiser of it, and note that the submissions of counsel from the Crown take into account the imitation firearm that was used. There is some difference between the Crown counsel and your own counsel about the, what is called, the starting point, that is the one that takes into account the circumstance of

the offence itself. Your counsel suggests that an appropriate penalty there is in the four to five year range, and the Crown suggests it should be in the five to six year range. It is important to bear in mind that the leading authority on this case is called R v Mako [2000] NZCA 407; [2000] 2 NZLR 170, and there are categories there which guide Courts in deciding how to deal with people. That authority is one that binds me when I am sentencing somebody on aggravated robbery, and para(54) relates to what is accepted to be cases of lethal weapons actually being used, together with aspects of disguise and other elements. It is really at a slightly lower level of the range of the confrontation of a shopkeeper, or in this case the Armourguard people, who are confined or assaulted, or confronted by multiple offenders, and five years, in the bad cases six years, should be the starting point.

[13] In your case, having regard to what appears to be accepted that you were the prime mover, it seems to me that the appropriate starting point is, in fact, a sentence of five and a half years. The probation officer’s report about you shows that you suffered a childhood marred by physical abuse and alcohol. You were expelled from school at age 13, but continued on correspondence with some help from the Waipareira Trust. You got into alcohol and cannabis from an early age, and started to use methamphetamine from about age 20, and you are now 31, I think. You had a heavy addiction to methamphetamine and nicotine at the time of your arrest. You explained that you had gone cold turkey in prison. You went to Australia in your early 20s with your father, and while in Australia you served three jail-terms, one of them was for two and a half years for aggravated robbery. You explained that what the precursor to your offending on this occasion was, was that you were addicted to methamphetamine, you owed drug debts of $20,000.

[14] The probation officer at first said that your motivation to change appeared unclear, and that your likelihood of refraining from future offending was assessed as low, so you were still seen as a risk. There is no doubt that that would be reduced if you were able to avoid the use of drugs in the future, and that is what you say you intend. Your offending has clearly been fuelled by addiction.

[15] So in this case, the aggravating factors that need to be taken into account, and they have been built into the starting point that I have mentioned, are the threatened

violence, the use of an apparent weapon, and the loss of the money which occurred. On the other hand, you are entitled to credit for your guilty plea, for your expressions of remorse, which appear at this stage to be that I should accept those as being genuine. You are supported, in Court, by your aunt and two other members of your family, so you are not entirely without resources.

[16] The reparation that was sought is something over $43,000, but of course, there is no way that you are ever going to be able to pay that, and I cannot make an order for reparation against you.

[17] In my view, there should be an uplift for those car conversions, which all occurred in a very short period of time, and that uplift should be six months. There is also the question of your previous convictions, there have been 44 in New Zealand, and I have mentioned the aggravated robbery in Australia.

[18] When I mentioned the reference to the probation officer’s report of the sentence of two and a half years’ imprisonment for aggravated robbery, Mr Kasupene showed some demur, and on inquiries it is clear to me that I should ignore that part of the pre-sentence report and I do not treat that as having been established. Accordingly, you will be sentenced on the basis of previous convictions that have occurred in New Zealand, and what your record is, as available, and which you accept.

[19] On that basis it is certainly appropriate for there to be some uplift. The Crown had sought six to nine months. I think it should be at the lower level of that, and that that should be an uplift of six months. As far as the car conversions and the breach of community work are concerned, those should lead to an uplift which, in my view, needs to be of the order of 12 months, so that the overall sentence will be one of seven years.

[20] But against that, you are entitled to significant deductions because of your plea of guilty. I accept that it is appropriate that that be of 25 percent, given that you responded at the earliest possible time, and that in addition to that it is also

appropriate that you receive a deduction for some efforts, while you have been in prison, to get rid of the addiction, and also your expressions of remorse.

[21] The overall effect of that is that your end sentence on the charge of aggravated robbery is five years and three months. You will also serve concurrent terms of one year on each of the car conversions, and of three months on the failure to complete the community work.

[22] Given your conviction for aggravated robbery today, you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also be given a written warning outlining these consequences, which lists what those serious violent offences are. If you are convicted of any serious violence offence other than murder after this warning, and if a Judge imposes a sentence of imprisonment, you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole, unless that would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.

[23] Mr Moana, you say that you have known Dylan Kasupene, and when he was looking for someone to do a robbery with, you had just been released from prison and you joined in under the influence of methamphetamine. I have mentioned already your part in this, and that was to support him in what he did, and also to brandish the apparent firearm. You willingly joined in and you became a full part of that robbery. I have mentioned the effects that that had on the people who were there.

[24] I acknowledge that you have written, apologising to the victims for the frightening experience that you put them through. Again, in your case, although reparation is sought of your share of the sum of $43,424, reparation is not possible and I cannot make a reparation order.

[25] You and also the other offender have mentioned that while restorative justice was asked for, you have required to be sentenced today and you hope that at some

point it may be possible to have a restorative justice meeting to personally explain to your victims your regrets.

[26] In addition to the robbery charge, which you admitted early, you also, after the robbery, bought an Audi car and you were stopped driving at Avondale and found to be disqualified. Your explanation for driving while disqualified was that you had to keep a WINZ appointment. On the charge of driving while disqualified, which is actually your fourth, you are convicted and disqualified from holding or obtaining a drivers licence for 12 months and one day, commencing now.

[27] On 13 January you breached release conditions of two different sorts, because you were on six months parole following a sentence of two and a half years for breaking and entering, escaping and conversion. The two breaches were that you failed to report to the probation officer, and you failed to keep an appointment with a departmental psychologist. So instead of doing that, you say that you had had an argument with your girlfriend, so you left the property and when you realised that you were going to be picked up for breaching the conditions of your release, you just kept going.

[28] All these charges you have faced have been subject to prompt pleas of guilty, and you are entitled credit for that.

[29] You have a harmful pattern of alcohol and drug use. You have been a user of methamphetamine and cannabis, and your counsel rightly describes the probation officer’s report about you as bleak. You have been involved as a Crips member from the age of 14. You did a four week programme with CADS while on parole. Despite that and other interventions you continue to offend, and your re-offending risk is still assessed as high, the risk of harm to others as moderate to high. Unless you address your addictions you will continue to offend and you will receive longer and longer periods of imprisonment.

[30] Obviously you need to be held accountable for the harm you have down, but I have to bear in mind the needs for rehabilitation and reintegration, as indeed for the other offender. In cases of aggravated robbery, even with apparent firearms,

protection of the community and deterrence are important considerations. You are here, of course I have mentioned the use of the weapon, the threat of violence and the planning that went into it, less by you than the other man.

[31] Your mitigation rests on your early pleas of guilty, and I accept that that is appropriate, and on your expressions of remorse and the writing of letters apologising to your victims.

[32] You have, since the days of Youth Court, which I leave aside, you have accumulated 65 previous convictions. You have your partner in Court to support you, and counsel submits to me that the sad loss of your first child has been a turning point for you. Let us hope that that is the case.

[33] The Crown counsel here submits that in respect of the robbery that there should be a starting point of five years to six years. I think, in your case, that the appropriate starting point is in fact five years, to recognise the slightly lesser part that you played in it. In addition to that there should be an uplift for your conviction record and other offending. There is some difference between your counsel and the Crown on what that level should be. In my view, the long list perhaps more than the current convictions, weighs in to provide for an uplift of

12 months. Accordingly, the starting point adjusted for that other offending is six years.

[34] You are entitled to a credit of 25 percent for the plea of guilty, and you are entitled to further credit for your expressions of remorse which, for this reason, I accept are genuine.

[35] In those circumstances, you are sentenced to four and a half years’ imprisonment on the aggravated robbery. On charges of driving while disqualified, I have mentioned the disqualification, on that you are sentenced to a concurrent term of three months. On each of the breaches of release conditions you are also sentenced to concurrent terms of three months.

[36] Given your conviction for aggravated robbery, you are also subject to the three strikes law, and I am now giving you a warning of the consequences of another serious violence conviction. You will be given a written notice outlining those consequences, and that lists what the serious violent offences are. If you are convicted of any serious violence offences other than murder after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, you must be sentenced to life imprisonment. That will be served without parole, unless it would be manifestly unjust. In that event, the Judge must sentence you to a minimum term of imprisonment.

ADDENDUM:

[37] Mr Goodwin has pointed out that I have failed to articulate a separate credit for the remorse. That is set in this case at three months, and the sentence is four years and three months.

D M Wilson, QC District Court Judge